If Elena Kagan were a man, would we be questioning her sexuality?

It’s common knowledge that Supreme Court nominee Elena Kagan is Jewish, and except for some handwringing over the fact that her appointment would mean the Court would be made up entirely of Jews and Catholics, her Jewish identity is a non-issue. Unlike the debates over Justice Sotomayor’s ethnicity, no one is worried that Kagan’s status as a “wise Jewess” will color her judgment. Her sexual orientation, however, is another story.

Everyone wants to know: “Is Elena Kagan gay?” The suspicion arises from the fact that Kagan is unmarried, does not have children, and while no one would dare admit it, I am willing to bet her short haircut is a part of the equation. So Is her staunch support of gay rights. Every “is she gay” story refers to her refusal as Dean of Harvard Law to allow military recruiters on the campus in protest of the “Don’t Ask, Don’t Tell” policy. The obvious question is, “If she were a man, would anyone be questioning her sexuality?”

Because Elena Kagan has not married, has not had children, and has done so well professionally, her story does not fit the usual narrative for women (although it does describe the life choices of a growing percentage of American women). Apparently the only legitimate reason a woman would choose a career over a family is because she is a lesbian, right? Because deep down all women want to be wives and mothers, right? To deny that there is sexism at work here would be a gross miscalculation.

There is also underlying homophobia at work here. Elena Kagan’s gender presentation (namely her haircut) is not overtly feminine, and that alone is enough to raise suspicion for many. The rumors and speculations about Elena Kagan’s sexuality reflect the troublesome notion that non-feminine presentation in a woman is indicative of homosexuality. This is why the threat of being labeled gay is a common form of gender policing. There’s nothing like the “What are you, gay?” line to scare a man or woman back into a traditional gender presentation.

It’s not surprising to see right-wing, anti-gay groups like the American Family Association (AFA) respond with homophobia and hate, but they are not alone. The White House is denouncing the rumors about Kagan’s sexuality, arguing that it is slanderous to “accuse” her of such a thing. As Alex Pareene of Gawker rightfully asks, “Because lesbians are terrible?” Getting angry over “accusations” (now being gay is a crime?) isn’t a very GLBT-friendly approach to dealing with homophobic witch-hunts.

The other way to respond to the speculation is by not responding at all. Liberals seem to write off the questions about Elena Kagan’s sexuality as just another case of extreme right-wing prejudice. Since we don’t see a gay individual as threatening to our point of view, it’s easy to say “Who cares?” or “It doesn’t matter,” and dismiss the discussion out of hand. But should we? Arguing that a Supreme Court Justice’s sexual orientation “doesn’t matter” seems to invalidate queerness as a formative identity, suggesting it is not as important as one’s race, gender, religion, class, etc. If those things matter, shouldn’t sexual orientation?

Andrew Sullivan makes an interesting argument that the American people have the right to know where a Supreme Court Justice is coming from, and that a nominee’s sexual orientation should be public just like one’s racial or religious identity. The reality is that any identity, especially a minority identity, influences judgment and the way one perceives the world. President Obama believes, as do I, that this is a good thing.

What some people fail to realize is that while being gay informs one’s judgment, so does the experience of being straight. As Amanda Hess writes at The Sexist: “If Kagan were married to a man, there would not be any silence on the details of her family life. There would, however, be complete f***ing radio silence on the idea that her heterosexuality has any effect on her judgment on an issue like same-sex marriage.” Out of 111 Supreme Court Justices, 108 have been influenced by their experience as men and 108 by the experience of being white, and all 111 have been influenced by the experience of being straight (although a couple of them have also been rumored to be gay).

Frankly, it would be great to get some more diversity on the bench, especially regarding sexual orientation. But this is an imperfect world and it would be political suicide to come out during the Senate hearings. I look forward to the day when an openly gay individual could be nominated and confirmed to the Supreme Court, or any other high profile position in the U.S. government, but we are not there yet. Until that day, Elena Kagan’s privacy should be respected.

The sexual orientation of a potential Supreme Court Justice may be relevant, but the question of Elena Kagan’s sexuality and why it came about is still problematic. No matter how you twist it, it is sexist and homophobic to “cry lesbian” just because Kagan is a successful, career-driven, unmarried woman with short hair. It’s interesting that of her multiple identities, Kagan’s religious identity as a Jew is the most protected. Her gender and sexual orientation, however, are fair game for dirty politics.